WSP01433

• File Number: 8407.400
• Description: Platte River Basin - River Basin General Publications - Nebraska
• State: NE
• Basin: South Platte
• Water Division: 1
• Date: 3/1/1983
• Author: Nebraska Natural Res
• Title: Policy Issue Study on Selected Water Rights Issues - Riparian Rights
• Water Supply Pro - Doc Type: Report/Study

ative conflicts were resolved not on the basis of
priority (however defined) but on a more compli-
cated "balancing of the equities", i.e. a more
detailed consideration of the facts and circum-
stances of each case.

Wasserburger v. Coffee.13 The 1966
Wasserburger I decision involved a conflict
between riparian livestock watering and appro-
priative irrigation on Hat Creek. The Nebraska
Supreme Court ruled that an appropriative water
use could be enjoined by court order if the
appropriative use was unreasonable in
comparison to the riparian uses it interfered with.
The factors to be considered in determining
whether the appropriative use was unreasonable
include: (1) the social value legally attached to
the riparian and appropriative uses, (2) the
priority date of the appropriation and the date the
riparian use was initiated, (3) the appropriate-
ness of the riparian use to the watercourse, (4)
the extent of the harm, and (5) the difficulty of
avoiding the harm.
In Wasserburger I the court departed from
looking simply at the relative priorities of the
parties. However, the court recognized that it was
departing from the rules established in earlier
riparian-appropriative cases, and limited the new
rules it enunciated to similar situations where
private appropriations interfered with private
riparian uses. In so doing, the court retained the
rules governing riparian-appropriative conflicts
established in Crawford (1903) and McCook
(1905) for resolving similar riparian-appropri-
ative conflicts.

Brummond v. Vogel.14 The 1969
Brummond case dealt with a conflict between an
appropriator and livestock watering. In
Brummond, however, the stockman did not prove
that he legally was a riparian. In Brummond the
Nebraska Supreme Court concluded that the
stockman's domestic use of water was legally
superior to the appropriator's use for agricultural
and recreational purposes. The court did not
indicate what was the legal basis for its opinion. A
close reading of the opinion suggests that the
stockman's water rights were not based on
Nebraska riparian or appropriative law, but were
rather based on actually using the water for
livestock watering purposes. Further, the live-
stock watering seems to have occurred prior to
the appropriative priority date. However, the
court did not clarify whether the livestock
watering was protected because of its prior use,
or because it was a preferred domestic use. The
court clearly intended to protect domestic uses
of surface water, but its legal rationale for doing
so was unclear.

1-4

Summary.

The following propositions summarize the
current law in Nebraska for resolving riparian-
appropriative conflicts.

1. Riparians are entitled to only nominal
amages for appropriative interference with
vested dormant riparian rights.
2. Riparians are only entitled to damages when
a "public" appropriator interferes with a non-
domestic riparian use if the riparian use was
initiated first.
3. "Public" appropriators are entitled to enjoin
non-domestic riparian interference with appro-
priative uses if the appropriative use was in-
itiated first.
4. Conflicts between private appropriators and
riparians will be resolved by balancing the
equities. The major factors to be considered are
(1) the local water supply conditions, (2) the
relative priority dates of the parties (where the
riparian priority date is the date of initial use), and
(3) the relative social utility of the appropriative
and riparian water uses.
5. Private individual domestic uses may be
entitled to injunctive relief where appropriators
interefere with dometic uses even in the absence
of legal riparian status.

FOOTNOTES

1.

Gill v. Lydick, 40 Neb. 508, 59 N.W. 104
(1894) (water power for mill); Eidenmiller Ice
Co. v. Guthrie, 42 Neb. 238, 60 N.W. 717
(1894) (ice harvesting).
Clark v. Cambridge & Arapahoe Irr. & Imp.
Co., 45 Neb. 798, 64 N.W. 239 (1895); Meng.
v. Coffee, 67 Neb. 500, 93 N.W. 713 (1903).
Wasserburger v. Coffee, 180 Neb. 149, 141
N.W.2d 738 (1966).
See Fischer, Harnsberger & Oeltjen, "Rights
to Nebraska Streamflows: An Historical
Overview with Recommendations," 52 Neb.
L. Rev. 313,318 (1973).
See Fischer et al. at 333-48.
Neb. Laws C. 69, 949 (1895).
Crawford v. Hathaway, 67 Neb. 325, 93 N.W.
781 (1903).
8. 45 Neb. 798, 64 N.W. 239 (1895).
9. 67 Neb. 325, 93 N.W. 781 (1903).
10. 70 Neb. 115, 102 N.W. 249 (1905).
11. 102 N.W. at 252.
12, 71 Neb. 79,102 N.W. 265 (1905).
13. 180 Neb. 149, 141 N.W.2d 738 (1966).
14, 184 Neb. 415, 168 N.W.2d 24 (1969).

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